Stop Equal Pay Claims – EOC

I was, to put it demotically, gobsmacked by the content of a ‘warning’ from the Equal Opportunities Commission that the Employment Tribunal system is creaking under the weight of claims brought by those naughty ‘no win no fee’ solicitors. When they have exhausted the public sector, says Chair Jenny Watson, they will turn on the private sector.

And now the truly jaw dropping part:

The majority of cases involve local authorities, but the commission says the private sector is just as vulnerable to claims.

It warns that “no win, no fee” lawyers will continue to fuel the number of women challenging employers. The commission suggests a new system in which employers must agree to check their pay system for discrimination to ensure it is fair.

In return they would get breathing space – a period of two to three years when they would not have to face any individual pay claims. The Commission’s chairwoman, Jenny Watson, said: “In return for accepting a legal obligation to check their pay systems are free from discrimination and taking robust steps to put their house in order should they find they have a problem, we think employers should have some breathing space from individual claims for a limited period. “This approach – what we’re calling a ‘protected period for transitional arrangements’ – is the kind of modern approach that’s needed.”

So, the system is collapsing under the weight of equal pay claims. This is not because the public and private sector persist in unlawful pay discrimination, it is because of the ravening hordes of no win no fee lawyers bringing cases. That these cases are merited and the claims largely successful is beside the point.

Rather than improve or enlarge the system so that unlawful pay discrimination can be adressed, the answer is to offer firms a moratorium on claims while they have a bit of a think about maybe not indulging in pay discrimination. The implicit threat being that if they don’t have a bit of think, the ravening hordes will be waiting, clawing at the door for when the moratorium period ends.

And this, astonishingly, from the Equal Opportunities Commission itself. The EOC’s website boasts the motto:

The Equal Opportunities Commission is working to eliminate sex discrimination in Britain today. If women and men had equal chances in life, things would be different. We’re working on it…

Apparently not by enforcing the law.

Whether this approach persists when the EOC vanishes into the Blob-like CEHR, we will have to wait and see.

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +.
Posted in Various (non-housing) and tagged , , , .

2 Comments

  1. Two points to think about. One is that no-win no-fee solicitors will only be able to claim their fee (in most cases) out of the winnings of the claimant, reducing the claimant’s recovery somewhat or entirely. This is rather different from the CFA we see in conventional litigation.

    Second, equal pay is really complex. No, really it is. It can be really difficult to make sure that your pay structure complies; you can’t simply negotiate something with the unions (as we have seen) and you can’t know for sure what the outcome of litigation would be so you end up involved in expensive litigation to sort it out.

    I’m all in favour of equal pay, but its wise not to minimise the problem. When you can have tens of thousands of cases conjoined before a single chair (as happened with the pension claims) such that the case is heard in instalments over 10 years with numerous trips to the higher courts including the Lords and ECJ you can see why an objective observer might not think this is the best thing to do.

    I’ve no feeling for whether the EOC are right on this, but unless you’ve practised in employment, its hard to realise how tough the field is.

  2. Francis, I’m aware of the funding differences – even if the EOC appparently isn’t. What I objected to was the EOC invoking the spectre of opportunistic NWNF solicitors as a stick for the private sector on the one hand, then suggesting the sugar coated carrot of a ‘breathing space’ on the other. I don’t think I was minimising the problem.

    If no-one can actually know whether their scheme is compliant and therefore what the outcome of litigation would be, I would have thought litigation asap would be the best way to sort it out, rather than all concerned merely delaying the inevitable by a couple of years.

    Of course, if it is that impossible to know whether you are compliant, then the legislation is the problem…

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